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Riding on the coat-tails of traditional cultural expressions
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Olteanu, Luminita (2021) Riding on the coat-tails of traditional cultural expressions. International Journal for the Semiotics of Law, 34 . pp. 861-891. doi:10.1007/s11196-020-09725-6 ISSN 09528059.
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Official URL: http://doi.org/10.1007/s11196-020-09725-6
Abstract
Matters related to the protection of traditional cultural expressions ('TCEs') or expressions of folklore ('EoFs') are sensitive and intricate as a blend of legal, economic, philosophical and anthropological considerations jostle to capture their core features. This results in disparate views surrounding what should qualify as TCEs or EoFs, who should be considered their 'owner' (assuming that ownership per se is conceptually compatible with these items), which is the most appropriate legal protection regime and how broad their scope of protection should be. Drawing from these various accounts on TCEs, this article focuses on the interaction between TCEs and EoFs originating on the European continent and the European Union ('EU') trade mark legislation. Specifically, this article examines whether the limitations of the effects of trade mark rights and of the absolute grounds of refusal, as developed by the case law of the Court of Justice of the European Union, are effective in preserving the cohesion of TCEs. This article advances the thesis that registration of TCEs and EoFs as trade marks generates an imbalance between the rights of the trade mark owner and the defences available to others under the EU trade mark law framework. Furthermore, such an imbalance is likely to hinder the unfettered circulation of TCEs and undermine their original meaning. Lastly, in some cases, trade mark registration of TCEs contributes to their appropriation and misappropriation. The article concludes that, de lege ferenda, the direct exclusion of TCEs as eligible subject matter for trade mark registration is preferable to seeking a post factum remedy.
Item Type: | Journal Article | ||||||
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Subjects: | K Law [Moys] > KC International Law | ||||||
Divisions: | Faculty of Social Sciences > School of Law | ||||||
Library of Congress Subject Headings (LCSH): | Cultural property -- Protection -- Law and legislation -- European Union countries, Intellectual property -- Protection -- Law and legislation -- European Union countries, Trademarks -- Law and legislation -- European Union countries, Cultural appropriation, Folklore | ||||||
Journal or Publication Title: | International Journal for the Semiotics of Law | ||||||
Publisher: | Springer | ||||||
ISSN: | 09528059 | ||||||
Official Date: | July 2021 | ||||||
Dates: |
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Volume: | 34 | ||||||
Page Range: | pp. 861-891 | ||||||
DOI: | 10.1007/s11196-020-09725-6 | ||||||
Status: | Peer Reviewed | ||||||
Publication Status: | Published | ||||||
Access rights to Published version: | Open Access (Creative Commons) | ||||||
Date of first compliant deposit: | 14 September 2023 | ||||||
Date of first compliant Open Access: | 14 September 2023 |
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